Marital Settlement Agreements: A Trial Alternative

Marital Settlement Agreements: A Trial Alternative

A Martial Settlement Agreement (MSA) is a legally binding contract between divorcing couples.  In California, a judge must rule on every single aspect of your divorce. In litigation (trials and hearings) the judge will consider the arguments and evidence that the attorneys presented and make a ruling that they think best fits the law.

However, if the couple has a Marital Settlement Agreement, the judge will simply rule that those agreements are the terms of your divorce.  There is no need for a trial or hearings.  In fact, under most circumstances the couple never even appears in court.

 

Agreements Included in a Marital Settlement Agreement.

Depending on your situation, a Marital Settlement Agreement will typically include arrangments for:

  1. Child Custody and Visitation
  2. Child Support
  3. Spousal Support (Alimony)
  4. Division of Property
  5. Miscellaneous Agreements

 

child-custody-hands

Child Custody and Visitation Agreement

In California there are two kinds of “custody” status: legal custody and physical custody. Legal custody refers to who can make important decisions for the children (health care, education, and welfare).  Physical custody refers to whom the children will live or spend significant amounts of time.   Both types of custody can be joint (shared) or sole (one parent only).

A Marital Settlement Agreement typically will also include a Visitation Agreement, also called a Parenting Plan. This plan usually includes a visitation and holiday schedule and transportation agreement.

 

child-support-orderChild Support

Child support in California is based on a formula that all courts and jurisdictions follow. Basically the formula factors in the income and certain expenses of each spouse, the number of children, and the amount of time the children spend with each parent. California law will not allow child support to be waived in your agreement. In other words, if you have children as part of your relationship, the courts must make an order regarding child support.

However, you can agree to a different amount than the court formula as long as you know the ‘guideline amount’ and it is in the best interest of your child.

 

alimonySpousal Support (Alimony)

Spousal support can be waived.  In other words,  it is optional.  BUT – IMPORTANT HERE – If you choose to waive spousal support in your agreement, it cannot be reinstated at a later time.

Courts determine spousal support based on a long list of factors including:

  • Length of marriage
  • Earning capacity and assets of each spouse or partner
  • Child care arrangements
  • Tax implications

As part of your agreement you can agree to any or no spousal support and determine for how long the support should be in place.

 

Division of Property

divide-property-divorce

California is a “Community Property” state. This means that both spouses or partners have a one half interest in all assets and debts either one of them (individually) or both of them (jointly) acquired during the marriage. A judge would determine what the community property is, how much each is worth, and then give each of spouse or partner half the value.

In your agreement, you can divide the property equally as the courts would, or unequally. You have a lot of flexibility in how you divide up your assets and debts.

However, California law requires full financial disclosure to each spouse by each spouse.

 

Miscellaneous Agreements
question-mark-agreementThis section of your Marital Settlement Agreement will include any other agreements that you would like to have included. It is YOUR agreement.

 

Where to get a Marital Settlement Agreement

There are a few options.  You can make your own, but courts will not make orders based on ambiguous or confusing terms.  So if you decide to make your own, you should probably have an attorney look over it.  The Gentle Divorce can provide this service.  A Settlement Template will go a long way in helping you determine the proper language to use in your agreement. Here is a good, simple template: LINK

Another option is to ask each individual’s attorneys work together to develop an agreement.  This takes a special type of attorney because, as you can imagine, opposing counsel are not used to working together.  Using this option, each party should hire an attorney that practices “Collaborative Family Law.”

Divorce Mediation is another option to develop a Marital Settlement Agreement.  Divorce Mediation is a less expensive option and less time-consuming than hiring individual attorneys. Divorce Mediation is usually a series of meetings between a divorce mediator and the divorcing couple.  At the end of the meetings, the mediator will draft a Marital Settlement Agreement.  This is what The Gentle Divorce does.

 

What to do with a Marital Settlement Agreement

The Marital Settlement Agreement is filed along with the other family law documents with the court clerk.  If all the service of process, disclosures, and forms are filled out correctly, a judge will review the case.  Typically the judge will rule that your Marital Settlement Agreement be adopted as the court’s ruling itself.

The-Gentle-DivorceSome Divorce Mediators, like The Gentle Divorce, also include court form preparation, filing, service of process, and the Marital Settlement Agreement as an all-inclusive, one-stop divorce solution.

If you want more information about Divorce Mediation or getting a Marital Settlement Agreement contact us at The Gentle Divorce.